Protest and Punishment

Politique et répression

Ritual Killing?

Texte intégral

1It may seem paradoxical to discuss the death penalty after it has been abolished in Britain and France, and while the american states which have reactivated it, use it sparingly. Yet it is important, because where it is still in force, the death penalty is the cornerstone of the scale of punishment used in that country and it raises among other issues: the right to punish and the power of the State and its limits. Besides, when the death penalty is rarely applied, the executed men tend to be carefully selected and it is all the more interesting to find out who is executed and for what crime, and to check to what extent the criteria applied for the selection of the executed men are consistent with the alleged justifications of capital punishment: deterrence, retribution, elimination and denunciation.

2I have chosen to compare the rate of execution in France in Britain and in the United States at a time when the death penalty was still in force and executions routinely carried out. From 1955 to 1964, excluding executions for political or terrorist offences and convictions by military jurisdictions, 41 prisoners were executed in Britain and Wales1, 14 in France2 and 4853 in the United States The comparison with the population of these countries in the sixties shows that the rate of execution was about 0,30 executions per 1 M population in France, 0,91 hangings per 1 M population in Britain and Wales and 2,67 executions per 1 M population in the United States. The differences are considerable and there is a nine to one difference between the French and the US rates of execution. Within the United States, the differences were striking. Besides the eight abolitionist states, seven other states carried out no executions from 1955 to 1964, out of these 15 states: 5 were in the NE region, 5 in the North Central region, 4 in the West and only one in the South (Delaware). In California alone, 64 prisoners were executed during that period and 54 in Texas. The Southern states accounted for 285 out of the 481 executions carried out by the states, almost 6C% (there were also 4 federal executions during that period, two whites were executed for kidnapping, one in 1956 and one in 1963 and two others for rape on a federal reservation in 1957)4. The race of the prisoner was also a factor: out of the 485 executed prisoners, 258 were black that is to say 56% of the executed prisoners, while in 1956 the Blacks represented only 12% of the total US population. In the case of executions for rape, 25% of the black prisoners compared to only 4,4% of the white prisoners were executed for rape5.

6 Kurt Andersen "An Eye For an Eye", Time (January 24, 1983) p. 21.

3The US Supreme Court was so concerned by these differences that in 1972 in Furman US Georgia, the supreme court ruled that the death penalty as applied in various states was "arbitrary and capricious", Justice Potter Stewart added that it constituted a "cruel and unusual punishment freakishly imposed on a capriciously selected random handful of murderers"6.

4The arbitrary, capricious and freakish nature of capital punishment is not particular to the United States and can be shown to apply to any state where the death penalty is in force. Unless it is a mandatory sentence, always carried out, nobody being reprieved, some of the accused are sentenced to death and others are not, and among the prisoners sentenced to death, some are executed and others not. In the US the "charge and plea bargaining" system is specially unfair: if the defendant pleads guilty on a lesser charge the judge imposes a lesser sentence; these negociations are akin to "horse trading".

5The point to ascertain is to what extent the selection processes leading to an execution are consistent with the alleged justifications of capital punishment. The main justifications put forward to support capital punishment are: deterrence, retribution and denunciation. Deterrence is based on the prevention of crime through the intimidation of potential criminals.

6Retribution justifies the execution of murderers because those who are responsible for the death of a person deserve to have their own life taken in return.

7Denunciation requires the execution of the criminal to show society's abhorrence of crime.

8In Britain death was the mandatory penalty for murder (until 1957) save for the discretion exercised by the police when the decision was made to prosecute for murder or for manslaughter:

"Murder, which is defined as where a person of sound mind and discretion unlawfully killeth any reasonable creature in being with malice aforethought either express or implied, the death following within a year and a day.""Manslaughter, which is defined as the unlawful killing of another without any malice either express or implied."7

9The definition of murder allows for a lot of discretion, there are no objective criteria: "malice afore thought either expressed or implied" is a very loose definition open to interpretation and the police decision is crucial since the court cannot bring charges other than those selected by the police, the alternative for the court is a verdict of guilty or not-guilty. Otherwise the selection process when a verdict of guilt has been passed on a charge of murder consisted in handing the case over to the Home Secretary who took the decision to execute or not. The study of a sample of 86 adults convicted of murder between January 1952 and March 1957 in HORS N° 51, p. 22 shows that:

"older and very young men were less likely to be executed than men aged between 21 and 49 (at the time of conviction). The offender was almost certain to be hanged if his crime involved sex or theft, and fairly certain to be reprieved if he killed his own child or committed the offence in a quarrel after drinking; his chance of reprieve was a little better than average if he killed a wife, girl friend or mistress. As regards mental health, men who were diagnosed as psychopaths were very likely to be executed."

10The execution of psychopaths raises questions: the generally accepted moral considers that abnormality disqualifies retribution; if a man is not normal and fully responsible he cannot deserve punishment, let alone the maximum penalty; otherwise he takes the path leading to the gas chamber. The Homicide Act 1957 could be regarded as an attempt to restrict the application of the death penalty to "justifiable" cases. It introduced a distinction between capital and other murder and created the offence of manslaughter due to diminished responsibility. Capital crime was defined as any murder by firearm, the murder of a policeman or prison officer on duty and murder in the course or in the furtherance of theft. It looks as if the Homicide Act largely upheld the selective practice reserving hanging for armed robbers or other professional criminals shooting during a robbery or to escape arrest, while sex murderers were spared by the new law whereas before they had tended to be executed. This was probably due to the creation of manslaughter by diminished responsibility as a separate offence since one may have doubts either about the sanity of such offenders or at least about their state of mind at the time of the offence. Yet the result of this attempt to rationalize the application of the death penalty was short-lived; neither the supporters of capital punishment, nor the abolitionists were satisfied with it. During the debate on the Murder (abolition of the death penalty) Act 1965, a Labour representative, Mr Siberman asked: "What is the logic of a law which sends a man to the gallows for shooting someone in the breast, but which spares he who has killed with a stab in the back?"8 and Professor Radzinowicz, criminologist and member of the Royal Commission on Capital Punishment from 1949 to 1953 considered that: "The anomalies of this Act in practice contributed powerfully to the abolitionist mood."9

11These inconsistencies also point to the somewhat artificial and arbitrary nature of any legislation, the aggravating factor in the case of capital punishment is that its effect is irreversible. The death penalty has been abolished in Britain and life imprisonment is now the mandatory sentence for murder, and can be imposed as a maximum sentence for various other offences. The British lifers held on 31 December 1977 included 75% of convicted murderers, about half of them (47%) had not served a custodial sentence before their conviction to life imprisonment at the average age of 29. Besides their average recall rate was 12% (for any offence or even for breaking the conditions attached to their licence), these characteristics do not correspond to the picture of professional hardened criminals, yet twenty years earlier many of them would have been executed, though the low reconviction rate of this category of offenders makes it difficult to believe that their execution was necessary for the protection of the public.

12In France, in his speech to the national assembly during the debate on the abolition of the death penalty, in the summer of 1981, the Justice minister, Mr Badinter stressed the fact that the three men executed under the former government: Christian Ranucci guillotined at 22 in Marseille in 1976, Jérôme Carrein guillotined in June 1977 in Douai and Hamida Djandoubi guillotined in September 1977 in Marseille, could not be regarded as posing a major threat to society.

13Christian Ranucci was charged with the murder of a little girl, he was arrested the day after because his car matched the description of a car seen on the spot, he confessed while in police custody but he later denied any involvement: in the case and pleaded not guilty, he refused to undergo E.E.G. and therefore his mental health was not properly assessed. He was sentenced to death for a murder which appeared to have been unpremeditated, to the applause of the public crowding the court room. While he was waiting for the decision of the President of the Republic to reprieve him or to allow the execution to be carried out, two other children were kidnapped and later found dead, causing the gutter press to call for drastic action. After his execution, a journalist wrote a book called Le pull-over rouge because an unexplained pull-over had been found in Ranucci's car, which he said was not his and which did not fit him. The author, Gilles Perrault shows that Ranucci was probably drunk and not alone at the time of the crime. If Ranucci's lawyers had done as much research as Perrault before the trial, Ranucci would probably not have been executed and this points to another unfairness, a great lawyer can make the difference between life and death.

14Among the last three prisoners to be executed, the second, Jérôme Carrein was executed for the murder and attempted rape of a little girl, the last prisoner to be executed in France, Hamida Djandoubi was a one-legged Tunisian executed for killing a prostitute. Like Ranucci he was executed in Marseille. In the city of the "French Connection", it is difficult to regard a youngster like Ranucci or a one-legged man as much a threat to the safety of the population or as the "Godfathers" or even as prominent figures of the local underworld.

15In France the most recent prisoners executed were often charged with the murder of a child in sexual circumstances. These cases always arouse strong feelings among the population and one of the favourite headlines of the mass-circulation papers is "child killed by monster". The media play a crucial role in these cases, the local event becomes a national event and the parents' feeling of insecurity is spread throughout the country well beyond the reach of the criminal. The media also amplify the intensity of popular feeling.

16The death of children does not always result in such an uproar, the gutter press did not display so much indignation about the Morhange talc case in which 36 babies died from contact with accidentally poisoned talc in 1973. Compared to such accidents or to the Thalidomid victims "the challenge of crime" does not look so formidable. The point is that in a criminal case one can point out a voluntary agent, a culprit.

17The primary cause of death in France (as in other developped countries) are road accidents (12543 deads in France in 1981) and the first cause of road accidents is careless driving. Despite its frequency, the risk of dying in an accident does not deter careless drivers from driving carelessly because as the saying goes: "accidents happen to others". Yet many supporters of the death penalty believe in the deterrent effect of the death penalty in spite of the clear absence of correlation between the death risk and the motorists' behaviour. Moreover, Stanford University Psychiatry Professor Donald Lunde is quoted in the American magazine "time" on january 24th, 1983 as saying "For every person for whom the death penalty is a deterrent there is at least one for whom it is an incentive."

18"Such murderers", according to New York University law Professor Anthony Amsterdam quoted in the same article, "are attracted by the Jimmy Cagney image of live fast, die young and have a beautiful corpse."

19The death penalty is no absolute deterrent as illustrated by the Gary Gilmore case. Gilmore put an end to a ten year period without execution in the United States by asking the Utah authorities to execute him: it is sadly ironical that the death penalty was reactivated in the United States at a condamned man's request.

20At 35, Gilmore had already spent eighteen years in custody, he was a "State raised convict" who went to reform school at 14 and later served thirteen years in one stretch in maximum security jails for armed robbery. Three months after his release on parole he robbed a motel, shot the receptionist and then robbed a service-station and shot the attendant for a handful of dollars. When sentenced to death he made it clear that he preferred to face a firing squad than another twenty years in prison. The US Supreme Court did not interfere with his execution. Since then, there have been seven executions in the United States.

21After the 1972 Furman Vs Georgia ruling, the US Supreme Court nullified all 40 death penalty statutes and the sentences of 629 death-row inmates, but in 1976 in Gregg us Georgia, the US Supreme Court found that the death penalty per se was not unconstitutional and upheld laws providing guided discretion. Meanwhile the states had drafted new statutes and by the end of 1978, 34 states and the federal government had death penalty statutes in effect, which conformed to the US Supreme Court standards, which require according to Capital Punishment 1978, page 15, that.

22"Only specifically defined types of murder are indictable under state capital punishment statutes revised since the Furman decision. Although varying somewhat from jurisdiction to jurisdiction, the type of homicide most commonly specified in these statutes are murder perpetrated during the commission of another felony: murder of a peace officer, correction employee or fireman engaged in the performance of official duties; murder by an inmate serving a life sentence and murder for hire."

23These statutes recall the British 1957 Homicide Act, limiting the application of the death penalty to some specified murders. They are based on the belief in the deterrent effect of the death penalty in some particular cases either to give policemen special protection or focused on life-sentence prisoners to deter them from committing further crimes while in prison.

24One may question the need for special protection for policemen who can defend themselves, specially in the US where they are usually heavily armed, of course one can see the point of view of the police officers' association which wants to get danger money with as little risk as possible. Why granting them an extraprotection denied to the disabled, elderly ladies, shopkeepers or other persons at risk, unless it is another instance of the tendency of government agencies to multiply the privileges for their staff? In spite of the Gilmore case, the new statutes are based on the belief in the deterrent effect of the death penalty for lifers, regardless of a lifer's living conditions which to say the least can only be described as "poor" in the overcrowded American prisons. The new statutes merely ensure that a lifer who cannot bear it any longer will not have to return to this condition if his escape attempt fails. Despite the execution in november 1972 of Claude Buffet (who had asked to be executed) and Roger Bontemps, for taking hostages and killing a nurse and a prison officer in Clairvaux in September 1971, in January 1978, in the same prison, two inmates who had a pistol smuggled in, took several prison officers and an assistant-governor hostage. Both prisoners were subsequently shot by police marksmen. The death penalty can even prove dangerous: in February 1981, a death row inmate in Fresnes, Philippe Maurice who had been sentenced to death for shooting a policeman, had a pistol smuggled in by his lawyer; she would probably not have agreed to do this, if he had not been in such a hopeless situation (given the pressures from the Police Association he was unlikely to have been reprieved): his attempt failed and he was overpowered after seriously wounding a senior prison officer.

10 "Capital Punishment", 1978, pp. 5-6.

25In the United States, after the reactivation of the death penalty, a review of the 445 prisoners under sentence of death on December 31 197810, shows that the new statutes have brought relatively few changes in the death row population by comparison with the 1955-64 sample of executed prisoners quoted above: there is a drop in the percentage of Blacks, 41% as opposed to 56%, but none of the black prisoners is under sentence of death for rape. The only rapist under sentence of death is a White convicted in Florida for the rape of a little girl. The Southern states held 90% of the prisoners under sentence of death on 31 December 1978.

26Generally speaking, the picture of American death sentence prisoners in 1978 bears many similarities to the prisoners executed in Britain and France,·men in their late twenties who have been sentenced for murder often associated with robbery or rape. The two main differences are the high percentage of Blacks (though if the percentage of inmates belonging to underprivileged groups had been ascertained among executed prisoners in Britain and France, it may have been comparable to the percentage of Blacks). The other difference is the higher percentage of prisoners with previous serious convictions. Among American death row inmates for whom information on past convictions for felony was available, 65% had a record of one or more such convictions. Whereas nearly half of the British lifers held on 31 December 1977 had not served a custodial sentence before their conviction to life imprisonment (which replaced the death penalty in Britain in 1965).

27It is worth noting that in spite of the provisions of the new death penalty statutes regarding murder for hire, which are clearly aimed at organized crime, none of the seven men executed since Gilmore were prominent figures of the mafia or of organized crime.

28In Britain the restoration of capital punishment has just been debated in Parliament. The main arguments put forward for the restoration of hanging were retribution and denunciation; deterrence was hardly evoked. During the debate votes for hanging for specific offences other than terrorist offences won considerably less support. Five of the six men who were at the time Northern Ireland Secretary, Lord Chancellor, Lord Chief Justice, Chief Constable and Army Commanding Officer in Northern Ireland at that time were opposed to the re-introduction of capital punishment. The reason they put forward was that the IRA would exploit the executions and turn the hanged terrorists into martyrs. Besides, Sir Robert Mark a former Commissioner of the Metropolitan Police in an article in the OBSERVER (10th july 1983) called "The hidden Cost of hanging" explains that since the extensive safeguards required by a trial which may result in a death sentence apply to all crimes, he prefers to do without the death penalty and without the extensive safeguards it implies. This statement from an authoritative source is not very reassuring, whereas extensive precautions are taken to prevent justicial errors when they may result in a hanging, the risk of condemning an innocent man is accepted when he is simply likely to be imprisoned...

29Shortly before an earlier debate on capital punishment, at the end of the five year suspension period decided in 1965, Professor Radzinowicz of the Cambridge Institute of criminology and member of the Royal Commission on Capital Punishment, 1949-1953 concludes an article in the "Sunday Times"11 about the efficiency of the death penalty with a question: Are we ready to hang all murderers without concerning ourselves overmuch with distinctions between their cases, and are we prepared to increase the number of executions above any previous level in this century to test the efficacy of capital punishment?

30Since this would increase the risk of making irreversible judicial errors as in the case of Timothy Evans (hanged in the fifties) and because the restoration of a modified system of capital punishment would be no substitute for the money and initiative needed for more effective methods of combatting crime, Professor Radzinowicz advises the abolition of the death penalty.

31His argument tends to overlook the fact that the efficiency of capital punishment has already been tested on a very large scale and without discrimination between the various kinds of homicides (or lesser offences) in previous centuries; it failed: big cities like London and Paris were notoriously unsafe at night and highways were unsafe in daytime too.

32Nevertheless, Professor Radzinowicz's opinion applies to the present situation in the US where the trickle of executions can have no significant effect on the homicide rate or on the elimination of confirmed felons.

33Deterrence, the operation of which has never been proven would clearly require a higher rate of execution than can be tolerated in our societies, this is probably the reason why supporters of capital punishment put forward denunciation as a justification for the death penalty. Former Justice Minister Mr Peyrefitte, in his book12, quotes Durkheim's justification of punishment (in general, not just capital punishment.)

"The penalty is less intended for the criminal than for all those who are not criminal and who reinforce their will to live together by communicating in the shared condemnation of the crime and of the criminal."

34In other words, punishment, and capital punishment is only more so, is a skilful manipulation of symbol to preserve social cohesion.

35In this light, the execution of black rapists makes sense, it was bound to restore the cohesion of the Deep South. The execution of Christian Ranucci in Marseille was highly symbolic too and timely to reassure French public opinion worried by a series of child killings; unfortunately he was perhaps innocent but what mattered was the timing of the execution not the issues of guilt or responsibility.

36Retribution or desert can be ruled out since there are too many discrepancies in the prosecution, trial and punishment of murderers; moreover retribution is supposed to be based on the prisoner's responsibility. In the context of this principle, it is difficult to justify the execution of psychopaths or other offenders with diminished responsibility. Besides retribution raises the awkward issue of matching the penalty with the offence and there is no measuring rod for that.

37Lastly the use of informers granted immunity clearly contradicts retribution; these informers are not punished because they have betrayed their friends. What makes things worse is that it is not the occasional offender who can become an informer since he does not have sufficient knowledge of the criminal world. One must have been involved deeply and for a long time to offer useful information about criminal activities. Professional criminals thus tend to be used by the police as was the case for the notorious S.A.C in France or the mafia in the US, as informers, to break strikes or to fight against political or terrorist organisations' endangering the State, while amateur offenders are eliminated. The picture of the executed men is that of losers, unsuccessful educationally, occupationally even in their bungled attempt in crime. This may be one of the reasons why they have been "selected" to be executed. Our society values financial success so much that there is some understanding for successful professional criminals. On the contrary the lonely misfit who commits a gratuitous crime or uses a degree of violence out of proportion with the amount of money involved, is likely to be executed.

38It is worth noting that if the death penalty has not been reintroduced in Britain, it has not been rejected on humanitarian grounds but because IRA terrorists would have been turned into martyrs and averged. So far from restoring the cohesion of society it would have been counterproductive. Since they would be avenged, IRA terrorists cannot be used as scapegoats.